This is a suit brought by The Orem Fruit and Produce Company of Baltimore City, a corporation, organized under the laws of Maryland, against the Northern Central Railway *Page 12 Company and the Pennsylvania Railroad Company, to recover damages for an alleged breach of contract in failing to safely carry in a refrigerator car four hundred and seventy-nine crates of tomatoes from Baltimore City to Montreal, Canada.
The declaration in substance states that on the 19th of July, 1904, the defendants were common carriers of goods for hire from Baltimore City to divers places in the United States and Canada; that on this date the plaintiff delivered to them, as such carriers, four hundred and seventy-nine crates of tomatoes, of the aggregrate value of nine hundred and fifty-eight dollars, to be carried in a refrigerator car from Baltimore to Montreal, Canada, and there to be delivered to J.R. Clogg Co.; the defendants at the same time agreeing to re-ice the refrigerator car in which the tomatoes were shipped at Wilkesbarre, Pennsylvania, and Oneonta, New York, but the defendants did not do so. It further states that the defendants wholly neglected their duty in this respect, and by the neglect to safely carry and re-ice the car according to the contract, the tomatoes were wholly lost or destroyed and the plaintiff sustained loss and damage to the extent of $1,000.
The case was tried in the Baltimore City Court and from a judgment in favor of the defendants, the plaintiff has appealed.
There are six bills of exceptions in the record; five of them relate to the rulings of the Court below upon the admissibility of evidence and the sixth to its ruling upon the prayers.
As the action of the Court in rejecting the plaintiff's prayer and in granting the defendant's prayer which withdrew the case from the consideration of the jury, present the important questions in the case, it will be considered at once.
The undisputed facts of the case briefly stated are these: The plaintiff had been a large shipper of fruit and produce from Baltimore City, their place of business, to Montreal, Canada, in refrigerator cars belonging to the appellee. On the 19th of July, 1904, the appellant delivered to the appellees, as common carriers, in the City of Baltimore four hundred and seventy-nine crates of tomatoes to be carried in one *Page 13 of their refrigerator cars from Baltimore City to the place of destination, Montreal, Canada. The route of the car was over several systems of railroads, to-wit, from Baltimore to Sunbury, Pa., over the Northern Central Railway; from Sunbury to Wilkesbarre over the Sunbury Division of the Phil. and Erie Railroad, operated by the Pennsylvania Railroad Company; from Wilkesbarre by the Delaware and Hudson Company to Rouse's Point, New York, and by the Grand Trunk Railroad from the last-named point to Montreal, Canada, the point of destination.
The tomatoes were received by the Northern Central Railroad Company at Baltimore in good condition and were placed in a car for transportation under the terms of a bill of lading set out in the record.
The car was inspected and properly iced in Baltimore, before leaving that city, at 5.40 P.M. on July 19th, 1904. It arrived in Montreal, on the 22nd of July, 1904, in a "heated condition, the ice tanks empty and the tomatoes dead ripe." The sum realized from the sale of the tomatoes amounted to $37.59, whereas, if they had not been injured and damaged, the plaintiff would have received from $800 to $900.
According to the terms of the contract between the plaintiff and defendant, stated in the bill of lading, the car was to be re-iced at two points, viz. at Wilkesbarre, Pa., on the line of appellees, a distance of about 213 miles from Baltimore, and at Oneonta, New York, on the line of the Delaware and Hudson Railroad a connecting carrier, 167 miles from Wilkesbarre. The distance from Oneonta to Montreal being about 215 miles, making the entire route of the car 600 miles.
It further appears that one of the defendant's lines ended at Sunbury, Pa., and the other at Wilkesbarre, Pa., but they had a through billing arrangement with the Delaware and Hudson Railroad. The re-icing of cars is noted on the card way bill which goes with the car and is delivered to the connecting carrier. The card shows the initials, the car number, its destination, routing, and the consignee.
It is admitted that the car was not re-iced at either Wilkesbarre, *Page 14 Pa,, or Oneonta, N.Y., according to the terms of the bill of lading. The car inspector for the Pennsylvania Railroad Company testified, that he inspected the car at Wilkesbarre, and made the entry in his record, "no ice required," that he lifted the lids on top of the refrigerator car, and saw that the ice was about four inches from the top, that it was the rule of the company, that if they could not get 600 pounds of ice in the ice tank, they considered the car full and they do not put any more ice in it; that he did not re-ice the car, that he lifted the lid of the ice-tank and found the ice within four inches from the top and concluded that no ice was required.
The witness Burroughs, assistant yard master of the Delaware and Hudson Railroad, testified, that he inspected the car at Oneonta, N.Y., on July 20th, 1904, and found the ice had meltedabout a foot from the top and he did not deem it necessary to re-ice it.
There was evidence to show that the refrigerator car was delivered by the Pennsylvania Railroad Company at Wilkesbarre and was received by the Delaware and Hudson Railroad Company in good order. The car was inspected but not its contents.
There was evidence also to the effect that the temperature in Baltimore, July 19th, 1904, was highest 97 degrees, lowest 77 degrees, at Wilkesbarre, on July 20th, highest 84 degrees, lowest 68 degrees; at Oneonta on July 21st, highest 84 degrees, lowest 55 degrees; at Montreal, July 22nd, highest 72 degrees, lowest 56 degrees.
The foregoing statement is condensed from the evidence, as presented in the record and it will be seen upon this state of facts, the Court below granted the defendants prayer which withdrew the case from the jury. The prayer is as follows: "The defendants pray the Court, to instruct the jury that since by the uncontradicted evidence in this case, it is shown, that the defendants performed every duty they and each of them owed to the plaintiff in the transportation of the tomatoes mentioned in the evidence, while on their respective lines, and duly delivered the said tomatoes and the car *Page 15 containing them to the next succeeding carrier at the end of their lines respectively, to wit at Sunbury, Pennsylvania, and Wilkesbarre, Pennsylvania, that the verdict of the jury must be for the defendants."
This prayer is open to several objections and under the facts of the case should have been rejected. It wholly usurped the functions of the jury and told them that by the uncontradicted evidence the defendants had performed every duty they and each of them owed to the plaintiff in the transportation of the tomatoes and had duly delivered them and the car containing them to the connecting carrier. It also assumed the truth of the evidence offered on the part of the appellee and excluded from the consideration of the jury the whole evidence produced by the plaintiff. In the case of Calvert Bank v. Katz, 102 Md. 61, it is said, it is manifest error for the Court to assume the existence of facts, and take away from the jury the finding of the same.
The prayer granted at the instance of the appellee in this case has been condemned by a number of decisions of this Court.Corbett v. Wolford, 84 Md. 426; Boyd v. McCann,10 Md. 118; Jones v. Jones, 45 Md. 154; Bank v. B. O.R.R. Co.,99 Md. 661.
It will be seen that the instruction absolutely ignored the plaintiff's theory of the case, and the contract to re-ice the car at the points designated.
According to the undisputed evidence, the appellees had neglected to re-ice the car at Wilkesbarre, Pa., or at Oneonta, N Y, according to the express terms of the bill of lading, and had therefore failed to perform their part of the contract. The rule relied upon by the appellees, to relieve them from the performance of their duty, "that the company did not re-ice unless they could get 600 pounds of ice in the ice tanks," can have no application to this case, because this rule was not embraced in the contract between the appellant, and appellees, and there is no evidence that the plaintiff had knowledge of the existence of such rule. R.R. Co. v. Miller, 16 Neb. 661. The case of Western Md. R.R. Co. v. Landis, *Page 16 95 Md. 749, relied upon by the appellees is entirely unlike this. In Landis case the evidence showed that the cattle were not injured at the time the cars were delivered by the Western Maryland Railroad Company to the Cumberland Valley Railroad, the connecting carrier. In this case, there is no evidence that the tomatoes the contents of the car were inspected at Wilkesbarre. The witness testified, that the car was in good order when delivered, but its contents were not inspected. In Meredith v.Railroad Co., 137 N.C. 479, it is held, on proof that a carrier received goods in good condition, the burden of proof rests upon such carrier to show delivery in the same condition to the next carrier or to the consignee, such proof being within its power.Myrick v. R.R. Co., 107 U.S. 107; U.S. v. Denver R.R.Co., 191 U.S. 84; Hoffman v. Cumberland R.R. Co.,85 Md. 391.
There was no error in the rejection of the plaintiff's prayer. It did not correctly recite the facts necessary to be found by the jury, under the evidence in the case, and was properly refused.
Nor was there error, in the ruling of the Court, in refusing to admit the testimony sought to be introduced in the first exception. The evidence was not material or relevant to the issue in the case. We do not understand that this exception is pressed, in this Court. It is not relied upon in the appellant's brief. The second exception is not properly before the Court and need not be considered here.
The questions raised by the third, fourth and fifth exceptions may be considered together and can be disposed of without discussing them seriatim. The ground of the objection to the questions embraced in these exceptions is, that the questions were leading, and the witnesses were not shown to have had the requisite knowledge of facts, upon which to base an opinion.
We concur in the action of the Court, as set out in these exceptions, and can see no error in the rulings thereon.
The questions were manifestly leading, and no proper foundation had been laid, for the introduction in evidence, of the *Page 17 opinions of the witnesses, sought by the questions to be elicited from them.
For the error in granting the defendant's prayer, the judgment must be reversed and a new trial awarded.
Judgment reversed and a new trial awarded with costs to theappellant.